Article
December 12, 2023
The Chesapeake Legal Alliance (CLA) wanted to share some language regarding our work with our partners, the Southern Maryland Recreational Fishing Organization (SMRFO) and Bay-Area Co-Petitioners who have filed a Petition for Rulemaking asking the Virginia Marine Resources Commission (VMRC) to regulate the menhaden fishery and protect the Chesapeake Bay Ecosystem.
Richmond, VA—In May 2023, we filed a challenge to the Virginia Marine Resources Commission for failure to regulate the menhaden fishery (aka pogies, bunker, or 'most important fish in the Atlantic').
Now, separate from the litigation, we are coordinating with fishing and conservation groups across the Bay watershed to file a petition for rulemaking to the VMRC.
We’re doing all this because the fishery is at a critical point: overfishing is devastating the menhaden population, with huge impacts on striped bass, the Bay and mid-Atlantic ecosystems, and local economies. We think this has national implications and broader environmental and fisheries impacts. I'm happy to provide follow up, including expert interviews, data analyses, and on the ground reports from those most directly impacted.
For further background, and to save you some reading, Atlantic menhaden use the Chesapeake Bay as a nursery, which is not only the largest estuary in the United States, but the most important one on the east coast, where fish spawn and remain juveniles for several years. While Atlantic coast stock estimates for menhaden do not indicate reason for alarm on a coastwide basis, there is no data for the Chesapeake Bay, where there are real causes for grave concern. The Bay's health is vital to a number of fisheries with implications for the entire mid-Atlantic, including striped bass and other predator species, ospreys, and marine mammals like humpback whales. Further, collapse of the menhaden stock within the Bay may well have ripple effects on all those reliant species, as well as for the menhaden stocks in the mid-Atlantic.
Also, our (parallel) litigation continues in Richmond City Circuit Court. In May 2023 we challenged the Virginia Marine Resources Commission's (VMRC) failure to regulate the menhaden fishery under Virginia law. The VMRC moved to dismiss the case. In October 2023, Judge Campbell dismissed the procedural claim but found merit in our primary claim that VMRC failed to follow the law. Then, in November, we filed a Motion for Summary Judgment on our primary claim. The court should rule on that motion by the end of this year.
Our current petition for rulemaking provides the framework for the why and how the agency should be acting. As above, a ruling on this affects the entire country: requiring agencies to follow the statutory conservation and management measures, and implicating entire swaths of ocean and entire fisheries.
We do not seek a total ban. The petition 'recommends' a moratorium 'unless and until' healthy stocks can be demonstrated in Virginia waters and the Bay; this includes a recommendation of allowing 5,100 metric tons per year of reduction fishing (purse seine landings) within the Bay during extreme weather conditions that prevent safely fishing outside the Bay (i.e. we're not looking to put the reduction industry out of business or ignore common sense considerations for safety).
The coastwide estimates are uncertain at best, and they are coastwide. Recent studies indicate 1) current modeling needs a lot of improvement; 2) that regional populations don't intermingle as well as previously assumed; and 3) that localized (i.e. Bay/mid-Atlantic region) fishing pressures can hurt regional stocks. (Estimation of movement and mortality of Atlantic menhaden during 1966–1969 using a Bayesian multi-state mark-recovery model. Wilberg et al. 2019) Unfortunately, there's a lot of 'hiding under desks' when it comes to connecting the known problems (local depletion of menhaden as reported by just about every local fisher, and the collapse of striped bass and osprey in the Bay region) with the uncertainties of coastwide and regional (Bay) stocks. And Osprey fledglings are doing poorly in the region, which has larger effects, with similar implications to predatory fish like striped bass.
Finally, the petition for rulemaking lays out the how and why the agency should act, and demonstrates not only the widespread negative impacts of failing to regulate this industry, but the scientific and economic bases to protect menhaden and the Bay. The lawsuit is a more narrow administrative law question: did the agency fail to follow Virginia law in regulating or failing-to-regulate the menhaden fishery? Our recent Motion for Summary Judgment shows that, on its face, all evidence say 'yes'. But a court can be only so prescriptive in telling the agency 'how' to follow the law; it can instead direct the agency to follow the law, and create guardrails such as timelines to do it. So the petition for rulemaking is necessary to provide a framework for implementing appropriate conservation and management measures.
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Southern Maryland Recreational Fishing Organization is a 501(c)(4) nonprofit organization with a mission to preserve and protect the Maryland fishery resources by protecting the rights of recreational fishermen, supporting research in the sustainability of fisheries, and serving the local community by supporting recreational fishing events.
Chesapeake Legal Alliance is a 501(c)(3) nonprofit organization dedicated to providing free legal services, with a mission to apply the power of the law to protect and restore clean water and promote healthy, resilient ecosystems for communities across the Chesapeake Bay watershed.
