CLA Argues Against Motion to Dismiss in Menhaden Regulation Challenge

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.