Atlantic menhaden are central to the Chesapeake Bay ecosystem. These small, nutrient–packed fish are a keystone species in the Bay and the Atlantic because they are a critical forage food for prized sportfish such as striped bass, weakfish, and bluefish, as well as predatory birds such as ospreys, and marine mammals. As a filter feeder, menhaden help to clean our waters–each fish filtering gallons of water every minute. Virginia law charges the Virginia Marine Resources Commission (VMRC) to manage the menhaden fishery in the Chesapeake Bay and Virginia’s Atlantic coast. VMRC must follow specific conservation and management measures when making rules such as setting fishery harvests. But it has abdicated its responsibilities. As reliable scientific studies confirm, overfishing is threatening the area’s menhaden population and, with it, the many reliant species of sportfish, predatory birds, and marine mammals. This also threatens the $990 million annual revenue and over 10,000 local jobs that the recreational fishing industry brings to Maryland and Virginia.
In response, Chesapeake Legal Alliance (CLA) filed suit in spring of 2023 on behalf of the Southern Maryland Recreational Fishing Organization against the VMRC. The legal challenge seeks to compel the Commission to follow its mandate to protect the fishery and marine resources of Virginia waters and the Chesapeake Bay. This will require VMRC to adopt more effective regulations and to meet the Commission’s statutory obligations—regulations that protect the fishery based on the best scientific, economic, and biological information available, and assure an equitable allocation of harvests to all users.
The suit focuses on VMRC’s recent dramatic increase in the permissible commercial harvest of menhaden in Virginia waters and the Chesapeake Bay. That increase adds 50 million pounds of menhaden beyond prior limits to be industrially captured and killed, each year. That’s roughly 75 to 100 million additional fish every year. Notwithstanding the dramatic harvest increase in 2023, VMRC has allowed the industrial harvest of menhaden to consistently reach immense numbers: well over 300 million pounds, or roughly 700 million fish, every year. This massive taking of menhaden has caused widespread impacts to the Bay. The Bay’s striped bass populations, which rely primarily on menhaden for food, are at emergency levels. Similarly, reduction of menhaden stocks has also deprived osprey of a key foodstock. Osprey populations currently have fertility rates lower than that in the 1960s, when the widespread use of the pesticide DDT pushed populations of ospreys, eagles, and other birds to the brink of extinction.
We know the cause of this depletion. A single company operates the industrial reduction fishery industry in Virginia, which captures, kills, and processes menhaden for pet food and food supplements. It consistently lobbies for license to take two–thirds of the menhaden harvest for the entire Atlantic Coast. Other Atlantic states like Maine and New Jersey recently shut down their reduction fisheries to conserve menhaden and have seen a rebound in menhaden populations and correlated improvements in reliant species.
VMRC’s immediate response to CLA’s challenge was to move to dismiss it on procedural grounds. In early October of 2023, the Court denied that motion. The result is to require VMRC to comply with Virginia fisheries law—to rely on the best available science to set responsible menhaden harvests and avoid acting solely to protect the economic interests of a single commercial entity. CLA expects to be vigorously pursuing this litigation to a successful final judgment by early 2024.
Menhaden are called the most important fish in the Chesapeake Bay and Atlantic Ocean because they are a critical forage fish: the primary food source for many predators, including sportfish like striped bass (rockfish), bluefish, and weakfish, as well as ospreys and marine mammals like humpback whales and dolphins throughout the Atlantic region. For years, the public has called for more responsible limits on the amount of menhaden that can be fished in order to protect the Bay’s delicate ecosystem.
The Virginia Marine Resources Commission (VMRC) is charged with regulating the menhaden fishery within Virginia waters and the Chesapeake Bay, and is statutorily required to consider and apply specific conservation and management measures to protect the fishery. Currently, the VMRC allows a single industrial harvesting company to capture and kill over 350 million pounds of menhaden from the Bay and Virginia waters, every year (the “reduction fishery”). The reduction fishery uses massive high-capacity netting and hauling techniques that capture several football field-sized schools of menhaden for fish meal, pet food, and other supplements.
The best available science shows that menhaden populations in the Bay are in decline. As regional overfishing of menhaden continues, there is a strong and direct correlation with declines in populations of reliant species like striped bass and osprey, along with forced shifts in diet away from their primary food source of menhaden. The situation is so dire that Bay states are considering dramatic restrictions on fishing seasons for striped bass, and Maryland has already limited its striped bass fishery. Despite these grave conditions, the VMRC has failed to restrict the reduction fishery, by even a single fish, instead allowing the maximum harvest each year that is permitted under the federal maximum limits.
For more than a decade, outdated and unreliable data from population surveys along the Atlantic Coast – and not in the Bay – have been used to justify fisheries regulations that fail to protect the public, Bay fishing communities, and the Bay ecosystem. The Southern Maryland Recreational Fishing Organization is part of a broader community—tens of thousands of people—dedicated to protecting the Bay ecosystem and its recreational fishing industry; an industry that provides 10,000 jobs and generates over a billion dollars in economic activity in the region.
In May 2023, Chesapeake Legal Alliance responded by filing a challenge, on behalf of the Southern Maryland Recreational Fishing Organization, against the Virginia Marine Resources Commission (VMRC), the agency charged with regulating Virginia’s menhaden fishery. We challenged the VMRC’s failure to develop and implement regulations that consider and incorporate statutorily-required conservation and management measures, including prevention of overfishing; consideration of the best available scientific, economic, and biological data; equitable allocation to users; and rulemaking that is not for the sole purpose of economic allocation. The case continues in Virginia Circuit Court, and Omega Protein and Ocean Harvesters recently intervened in the litigation.
Now, and separate from the litigation to better regulate the menhaden fishery, we coordinated with fishing and conservation groups across the Bay watershed to develop a petition for rulemaking to the VMRC. The petition is led by the Chesapeake Legal Alliance and our client, Southern Maryland Recreational Fishing Organization, along with co-petitioners from across the Bay region, are filing a petition for rulemaking, asking the VMRC to employ specific conservation and management measures that better regulate the fishery to protect the Bay and the public’s interest. The petition lays out the blueprint for ‘how’ and ‘why’ the agency should be acting.
On Tuesday, November 22nd, CLA filed a Motion for Summary Judgment in Richmond City Circuit Court, on behalf of the Southern Maryland Recreational Fishing Organization (SMRFO). This motion was filed on the heels of Judge Campbell’s recent holding that there was merit to CLA’s claim that VMRC ignored the statutorily required conservation and management standards.
In its pleading, CLA spotlights the Virginia Commission’s own evaluation document, prepared by agency staff, that explains why it has side-stepped Virginia law. That evaluation document states that its priority is to remove any reference to the actual harvest amount and perpetually defer to the maximum limits set by a federal commission. The agency justified this approach because it “increases regulatory efficiency, so the regulation does not need to be modified yearly”. This means that the agency has and will continue to ignore the statutorily required conservation and management measures, including prevention of overfishing; consideration of the best available scientific, economic, and biological data; equitable allocation to users; and rulemaking that is not for the sole purpose of economic allocation. Va. Code Ann. § 28.2-203.
The motion requests that the court invalidate the illegal regulation and require the agency to follow the law. Specifically, the requested relief asks for a schedule to: (1) invalidate the illegal regulation; (2) demonstrate that it has done the required analyses and followed Virginia law to promulgate a new regulation prior to the May 2024 menhaden season; and (3) provide responses to public comments or Petitions for Rulemaking relating to menhaden, including the agency’s analyses and justifications.
CLA remains optimistic about Judge Campbell’s recent decision and feels confident that the court recognizes the merit in our argument that the VMRC abrogated its duty and ignored the mandated conservation and management standards for setting the state’s allowable menhaden harvest.
On Thursday, September 7th, CLA’s Executive Director David Reed traveled to Richmond, Virginia to argue the case before the Honorable Richard Campbell against the Virginia Marine Resources Commission’s (VMRC) motion to dismiss CLA’s challenge of the agency’s March 2023 decision to continue overharvesting of the menhaden fishery via reduction fishing.
In May 2023, CLA petitioned the Court, arguing on behalf of the Southern Maryland Recreational Fishing Organization that: 1) the VMRC promulgated menhaden regulations outside of the statutorily required timeframe, when none of the fishermen or public were looking; and 2) the VMRC abrogated its duties by ignoring Virginia fisheries laws mandating conservation and management measures be used in regulating the menhaden fishery. VMRC then moved to dismiss the case.
On Friday, October 6th, Judge Campbell issued his ruling, sustaining in part and overruling in part the VMRC’s Demurrer and Motion to Dismiss. While Judge Campbell found that VMRC did not err when it promulgated menhaden regulations outside of the required rulemaking period, the Judge agreed with CLA that VMRC may have failed to follow Virginia fisheries management laws. The Judge held that CLA’s claim that VMRC ignored the statutorily required conservation and management standards had merit and should continue. This includes the VMRC’s failure to promote conservation and equitable allocation, or to consider the best scientific, economic, biological and sociological information available, when promulgating its recent regulation.
CLA is optimistic about Judge Campbell’s decision, as it demonstrates that the court recognizes the merit in our argument that the VMRC abrogated its duty and ignored the mandated conservation and management standards for setting the state’s allowable menhaden harvest.
On May 10th, Chesapeake Legal Alliance filed a petition on behalf of our client, the Southern Maryland Recreational Fishing Organization, challenging Virginia’s Marine Resource Commission’s (VMRC) March 2023 decision to continue overharvesting of the menhaden fishery via reduction fishing.
On August 4th, Chesapeake Legal Alliance filed a Response to the Virginia Marine Resources Commission’s (VMRC) Demurrer and Motion to Dismiss our lawsuit on behalf of the Southern Maryland Recreational Fishing Organization challenging VMRC’s March 2023 decision to continue overharvesting of the menhaden fishery via reduction fishing.
On Thursday, September 7th, CLA’s Executive Director David Reed traveled to Richmond, Virginia to argue before the Honorable Richard Campbell against the Virginia Marine Resources Commission’s (VMRC) motion to dismiss CLA’s challenge of the agency’s March 2023 decision to continue overharvesting of the menhaden fishery via reduction fishing.
CLA’s challenge is based primarily on two Virginia laws. The first mandates that the agency must protect the menhaden fishery using the required fishery conservation and management standards, including prevention of overfishing; consideration of the best available science, economic data, and biological data; equitable allocation to users; and rulemaking that is not for the sole purpose of economic allocation. The second law requires that the agency may only adopt regulations for the management of menhaden during the rulemaking period (between October 1 and December 31) unless regulatory action is necessary to address an emergency pursuant to Virginia law or to ensure compliance with the Interstate Commission’s (Atlantic States Marine Fisheries Commission) coastwide regulatory plan.
CLA argued two major issues to the Court: (1) VMRC disregarded the law and acted outside the rulemaking period – when none of the fishermen and the public were looking – attempting to justify this blatant disregard of the law after the fact by inventing an exception to the law that does not exist. In fact, the decision to dramatically raise the number of menhaden that can be caught and killed by just under 50 million pounds was neither to address an emergency nor to ensure compliance with the Interstate Commission’s plan since there is no requirement that Virginia’s menhaden harvest cap equal the Interstate Commission’s and the agency’s prior regulation which was already under the cap established by the Interstate Commission was not out of compliance. (2) The agency’s own evaluation document clearly says that the goal of the out-of-time rulemaking was to side-step Virginia law, and relieve itself of the menhaden fishery protection standards, instead merely matching the absolute maximum cap allowed by the federal interstate commission.
VMRC created an after-the-fact justification that relies on a thinly veiled semantics argument: alleging that if the court were to remand the agency’s March regulation, no one would know what to do, and the state would be in so much confusion over percentages that it would allow Virginians to violate the new state harvest cap imposed by the Interstate Commission.
But the situation is clear: The Virginia Legislature expressly limits the VMRC’s rulemaking authority so that they can only act between October 1 and December 31 each year. The Interstate Commission’s new regulation set a cap, not a floor, and the VMRC’s prior state regulation was already below the new federal cap, so there was no emergency and no need to promulgate a new regulation out of time to ensure compliance. What the agency is arguing is simply an after-the-fact excuse for their out-of-time rulemaking – there was nothing in the record indicating that the Interstate Commission had alerted the VMRC that they were out of compliance with the new federal regulation. If there was no warning from the Interstate Commission, then there was no emergency or compliance issue, and if the VMRC had wanted to adjust the harvest cap, it should have done so between October and December of 2022.
While Judge Campbell did not make a decision from the bench, he announced his intention to issue a decision on the motion to dismiss before September 22nd.
Atlantic menhaden are central to the Chesapeake Bay’s food chain and support one of the largest commercial fisheries on the Atlantic coast. These small, nutrient-packed fish are critical forage food for predatory fish such as rockfish (striped bass), weakfish, and bluefish, predatory birds such as ospreys, and marine mammals, and also act as a filter feeder, filtering up to seven gallons of water each minute. The Bay is one of the most important nurseries for menhaden, helping to sustain the population along the Atlantic coast.
The Virginia Marine Resources Commission (VMRC) currently allows 51,000 metric tons of menhaden, or 250 million fish, to be taken from the Bay each year, to the detriment of the Bay ecosystem, and without the legally required data or research to determine the extent of negative impacts to the Bay. Of this 51,000 metric tons, 90% of the entire menhaden harvest is given to a single reduction fishing company that fishes largely in or near the mouth of the Bay. This company operates the sole remaining menhaden reduction facility on the U.S. East Coast in Virginia. The company reduces (cooks and grinds up) the fish for a variety of uses, such as nutritional supplements, food additives, and feed for livestock and fish farms.
The tens of thousands of Virginians and Marylanders who have demanded that the VMRC follow Virginia law and protect this critical species are being ignored. Help us make our collective voices heard.
Read more about the massive threat that menhaden reduction fisheries pose to Bay sportfish and wildlife by clicking here.
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Atlantic menhaden are small, nutrient-packed fish that are central to the Chesapeake Bay’s food chain and support one of the largest commercial fisheries on the Atlantic coast. They are a rich food source for many predator fish, including rockfish, bluefish, and weakfish, as well as ospreys, bald eagles, dolphins, and whales. As a result of their environmental and economic importance, management of the menhaden fishery is a political flashpoint across the region.
The Bay is one of the most important nurseries for menhaden, helping to sustain the population along the Atlantic coast. Menhaden eggs hatch in the open ocean before drifting on currents into the Bay, where juvenile fish live and grow for their first year of life. But long-running scientific surveys show the number of young menhaden in the Chesapeake Bay dropped dramatically in the early 1990s and remains low.
At the same time, almost three-quarters of all menhaden caught on the East Coast are harvested by a Canadian-owned reduction fishery company that fishes largely in or near the mouth of the Bay. This company operates the sole remaining menhaden reduction facility on the U.S. East Coast in Virginia. The plant reduces (cooks and grinds up) the fish for a variety of uses, such as nutritional supplements, food additives, and feed for livestock and fish farms.
Menhaden migrate along the Atlantic coast from Florida to Maine and an interstate governing body – the Atlantic States Marine Fisheries Commission (ASMFC) – manages the fishery for the 15 states that share the coastline. Over the past two decades, fishery managers have raised concerns that the concentration of fishing efforts in Bay waters could disrupt the Bay’s food chain, harming populations of various fish species. As a precaution, the ASMFC first set a cap for the reduction fishery’s industrial menhaden fish harvest in the Bay in 2006. In 2017, the ASMFC voted to update the cap to reflect more recent menhaden harvest levels in the Bay.
In blatant disregard for the fishery management process, the reduction company knowingly exceeded the cap in 2019. The violation resulted in a unanimous ASMFC vote referring Virginia to the U.S. Department of Commerce for noncompliance with interstate fishery rules. The Secretary of Commerce decided to uphold the ASMFC decision. The new harvest cap approved by the Virginia Marine Resources Commission (“VMRC”) in April 2020 lowered the amount of menhaden that can be caught in the Chesapeake Bay to 51,000 metric tons per year. However, even with the cap reduction, menhaden numbers within the Bay remain dangerously low, and the VMRC has failed to take any further action that meaningfully addresses this fisheries crisis.
A major question among scientists and legislators has been “would it aid in the rebuilding of the Chesapeake Bay striped bass spawning stock and in preventing osprey nesting failures to increase menhaden in the Bay?” Opinions from leading scientists say that it would.
One management option would be to require that factory fishing taking place in the U.S. Atlantic zone to occur outside of the Chesapeake Bay and Virginia state waters. This is what every state but Virginia has done; however, it is unclear whether ASMFC may take an action that prevents fishing in state waters (e.g. Virginia waters) as that may interfere with “state sovereignty.”
However, because the supply of migrating menhaden throughout the Bay watershed – and the condition of the fish and wildlife in those watersheds – is directly dependent on migrating menhaden populations in Virginia and because Section Six (a)(7) of the ASMFC Charter requires that “fishery resources shall be fairly and equitably allocated… among the states,” are Maryland and other northern Bay states forced to surrender their sovereignty since they cannot control what happens in Virginia waters? By moving factory fishing into the U.S. Zone, the reduction fishery company would be forced to fish from menhaden schools in Atlantic circulation, not from schools migrating near Virginia shores, just miles away from crossing into Maryland.
Another issue is that the ASMFC allocates 78% of all the menhaden caught on the Atlantic coast to Virginia (151,392 metric tons – about 15,000 schools). Of this allocation, Virginia then allocates 90% of that share to the reduction company. It may be argued that this is a waste of precious natural resources in violation of the first few sentences of the ASMFC Charter that prohibits the waste of a fishery.
Finally, there appear to be several other issues that arise concerning Virginia’s menhaden allocation to the reduction company under the Code of Virginia § 28.2-203 (1)-(4). For one, is the Virginia Marine Resources Commission in its allocation of menhaden applying the preferences for food fishermen (finfish fishermen) and recreational anglers in Section (1)? Is the Commission following conservation or science required in Section (2) when it just uses historic landings? And third, is the Virginia Marine Resources Commission applying the rule that “no person acquires an excessive share” as seen in Section (4), even though the reduction company is allotted more than twice as much menhaden as all the other states and fishermen on the Atlantic coast?
Regardless of what section of what Charter has been violated, one thing is clear – something must be done to restore the Bay’s menhaden population which is so integral to the Bay ecosystem, and locals’ livelihoods.
Menhaden are the most important fish in the Chesapeake Bay. This small, nutrient-packed forage fish is a keystone species -critical to the Chesapeake Bay ecosystem- because they are a primary food source for many sport fish, including striped bass (rockfish), bluefish, and weakfish, osprey and eagles, and marine mammals, like dolphins and whales, throughout the Bay and the mid-Atlantic region. These fish are also vital because they act as efficient filter feeders, filtering several gallons of water each minute. The Bay is one of the most important nurseries for menhaden, helping to sustain the population along the Atlantic coast.
The best available science shows that menhaden populations in the Bay are in decline, and for years the public has called for more responsible limits on the amount of menhaden that can be fished to protect the Bay’s delicate ecosystem. As overfishing of menhaden in the Bay continues, there is a strong and direct correlation with declines in the population of sportfish, osprey, and marine mammals, along with forced shifts in diet away from their primary food source of menhaden.
In May 2023, Chesapeake Legal Alliance responded by filing a challenge, on behalf of the Southern Maryland Recreational Fishing Organization, against the Virginia Marine Resources Commission (VMRC), the agency charged with regulating Virginia’s menhaden fishery. We challenged the VMRC’s failure to develop and implement regulations that consider and incorporate statutorily-required conservation and management measures, including prevention of overfishing; consideration of the best available scientific, economic, and biological data; equitable allocation to users; and rulemaking that is not for the sole purpose of economic allocation.
Now, and separate from the litigation to better regulate the menhaden fishery, we coordinated with fishing and conservation groups across the Bay watershed to file a petition for rulemaking to the VMRC. The petition lays out the blueprint for ‘how’ and ‘why’ the agency should be acting.
